Citation Nr: 21075694 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-07 194 DATE: December 21, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. REMANDED Entitlement to service connection for a heart disorder to include as secondary to service-connected posttraumatic stress disorder (PTSD) with generalized anxiety disorder is remanded. Entitlement to service connection for a respiratory disorder, including asthma, due to environmental hazard exposure in Southwest Asia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 14, 2019 (excluding any periods of total disability based on hospital treatment under 38 C.F.R. § 4.29) is remanded. FINDING OF FACT The Veteran does not have a diagnosis of CFS, an undiagnosed illness manifested by fatigue, a diagnosed illness with an unexplained etiology, and his symptoms of fatigue are not separate and distinct from symptoms associated with his service-connected disabilities during the appeal period. CONCLUSION OF LAW The criteria for service connection for CFS are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 1988 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's CFS claim was recently remanded in December 2020 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for CFS. The Veteran contends that he currently has CFS that is the result of his military service. In addition, he contends that his CFS was caused or aggravated by his service-connected PTSD. His claim for compensation was received by VA in April 2012. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A review of the Veteran's service personnel records reveals that he was awarded the Kuwait Liberation Medal for service in Saudi Arabia and Kuwait, as well as being awarded the Southwest Asia Service Medal with Three Bronze Stars and a Combat Infantry Badge during his active duty. As such, the Board finds that Gulf War service has been established. Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as CFS, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A veteran of the Persian Gulf War may be entitled to VA benefits on a presumptive basis if he exhibits a "qualifying chronic disability" that manifests to a certain degree before December 31, 2021, and that cannot be attributed to any known clinical diagnosis." Atencio v. O'Rourke, 30 Vet. App. 74, 80 (2018). A qualifying chronic disability includes a "medically unexplained chronic multisymptom illness" or MUCMI" that is defined by a cluster of signs or symptoms." 38 U.S.C. § 1117 (a)(2)(B). Additionally, a MUCMI must lack "conclusive pathophysiology or etiology." 38 C.F.R. § 3.317 (a)(2)(ii). "Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained." Id. These criteria set forth the overall framework by which VA determines whether a condition is a MUCMI. See Atencio, 30 Vet. App. at 80-82. Congress also has specified "three conditions that qualify per se as MUCMIs." Id. at 81. These are "CFS, fibromyalgia, and irritable bowel syndrome." 38 U.S.C. § 1117 (a)(2)(B); 38 C.F.R. § 3.317 (a)(2)(ii)(B). In other words, CFS is one of the "conditions that automatically qualify as a MUCMI." Atencio, 30 Vet. App. at 81. For VA purposes, a diagnosis of CFS requires: (1) new onset of debilitating fatigue severe enough to reduce daily activity to less than 50 percent of the usual level for at least six months; and (2) the exclusion, by history, physical examination, and laboratory tests, of all other clinical conditions that may produce similar symptoms; and (3) six or more of the following: (i) acute onset of the condition, (ii) low grade fever, (iii) nonexudative pharyngitis, (iv) palpable or tender cervical or axillary lymph nodes, (v) generalized muscle aches or weakness, (vi) fatigue lasting 24 hours or longer after exercise, (vii) headaches (of a type, severity, or pattern that is different from headaches in the pre-morbid state), (viii) migratory joint pains, (ix) neuropsychologic symptoms, (x) sleep disturbance. 38 C.F.R. § 4.88a. Based on a review of the evidence of record, the Veteran does not have a diagnosis of CFS or an undiagnosed illness manifested by chronic fatigue. As such, the preponderance of the evidence is against the claim for service connection. A review of the service treatment records (STRs) reveals complaints of exertional dyspnea and sleep difficulties. The Board notes that the Veteran elected not to undergo a separation examination in April 1992. A review of the post-service VA and private treatment records note complaints for fatigue and shortness of breath. A May 2011 private treatment record noted a diagnosis of chronic fatigue syndrome with fibromyalgia (Gulf War syndrome). However, a February 2012 VA examination found no current diagnosis of CFS. The examiner noted the Veteran's complaints of constant fatigue, muscle pain, joint pain, sleep disturbances, and cardiovascular problems. However, the examiner found that the criteria for a CFS diagnosis were not met under 38 C.F.R. § 4.88a. In addition, he found that the Veteran's heart disorder was the explanation for the Veteran's fatigue and shortness of breath. The Board remanded this matter in December 2020 for a new VA examination due to the evidence of record being unclear as to (1) whether the Veteran had been diagnosed with CFS, and (2) whether the symptoms of fatigue are related to CFS or to his service-connected fibromyalgia. The Veteran underwent a VA CFS examination in April 2021. The examiner found no evidence of a current CFS diagnosis. He noted that there was no evidence verifying a diagnosis of CFS. In addition, he noted that it would be impossible to attribute the fatigue being from CFS as the Veteran had multiple conditions and possible causes of fatigue including insomnia, obesity, restless leg syndrome, aortic stenosis, possible adverse reaction to medication, anxiety disorder, fibromyalgia, obstructive sleep apnea, and PTSD. The Board notes that the Veteran is currently service-connected for PTSD, sleep apnea, fibromyalgia, and right knee arthralgia. An addendum VA opinion was issued in May 2021. The examiner found that there was no evidence of CFS or of a chronic multisystem illness related to the Gulf War. He noted that CFS is a diagnosis of exclusion and the Veteran's subjective symptomology should be worked up for etiology by his medical provider. A second addendum VA opinion was issued in July 2021. The examiner found that there was no evidence of CFS. He noted that CFS is a diagnosed condition of uncertain etiology as there is no clear pathophysiology nor is there an adequate diagnostic test. The examiner went on to explain that CFS is essentially a diagnosis of exclusion and the initial workup for a complaint of fatigue is to rule out other possible causes which would include cardiopulmonary, metabolic, hematologic, rheumatologic, infectious or psychologic conditions. The examiner noted that the cause of the Veteran's fatigue after April 2012 is essentially the same as his prior complaint of fatigue which was a gradual fatigue that started in military service approximately 30 years ago that has since been constant and progressive and that he was seen shortly after separation for fatigue. Furthermore, the examiner noted that given the Veteran's history and the several conditions that can cause fatigue for the Veteran, he could not comment on how the diagnosis of CFS was made by the private treating physician. Finally, the examiner noted that the Veteran's fatigue is multifactorial as he has several conditions that can cause fatigue and dyspnea to include obesity, hypertrophic cardiomyopathy, fibromyalgia, sleep disturbance, tobacco dependence, sleep apnea and probable deconditioning. The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board concludes that the Veteran does not have a current diagnosis of CFS and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, his complaints of chronic fatigue has been identified as a symptom of his service connected disabilities and not an undiagnosed illness. The VA examiners attributed his fatigue to be multifactional due, in part, to his service-connected sleep apnea, fibromyalgia, and PTSD. Indeed, the evidence of record demonstrates that the Veteran's fatigue complaints were considered in the assignment of the ratings for his various service-connected disabilities. The Veteran has not otherwise asserted or identified any outstanding medical evidence that shows that his symptoms of fatigue are separate and distinct from his service-connected disabilities. As such, service connection is not warranted in this matter. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that he currently has CFS, which is the result of his military service, including being caused or aggravated by his service-connected PTSD. While the Veteran may be credible to describe the particular symptoms which he experiences, determining the exact nature and diagnosis of CFS requires specialized testing and medical knowledge or training which the Veteran is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, he cannot provide an opinion as to etiology in such cases. Accordingly, his lay statements are entitled to no probative value with regard to the diagnosis and etiology of CFS and the cause of his fatigue. The probative evidence of record demonstrates that he does not have a diagnosis of CFS and that his complaints of fatigue are attributable to his service-connected disabilities. Since the preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, his service connection claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder, to include as secondary to service-connected PTSD with generalized anxiety disorder. The Veteran contends that his heart disorder is the result of military service. In addition, he contends that his service-connected PTSD caused or aggravated his heart disorder. A review of the pertinent medical evidence shows that the Veteran's heart disorder could have preexisted military service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the injury or disease was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b)(3); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (outlining the presumption of soundness). Review of the STRs reveal that the Veteran's enlistment examination does not disclose any heart conditions. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that a veteran's disability was both preexisting and not aggravated by service. 38 U.S.C. § 1111. A review of the post-service VA treatment records notes that the Veteran reported experiencing an episode of rheumatic fever from 1975 to 1976. In addition, the Veteran underwent a VA examination in June 2011. He was diagnosed with subaortic stenosis and hypertrophic cardiomyopathy. The examiner noted that a problem associated with these diagnoses was that the Veteran experienced an episode of rheumatic fever as a child. However, no etiology opinion was given by the examiner. The Veteran underwent a VA Gulf War examination in February 2012. He was diagnosed with a rheumatic fever condition, which affected his heart prior to entering service according to the examiner. The Veteran underwent a VA heart examination in March 2020. He was diagnosed with valvular heart disease, cardiomyopathy, and transaortic septal myomectomy. The examiner noted a history of rheumatic fever between 1975 and 1976 and the first complaints of chest pain post-service in 1996. The examiner then gave a negative opinion that the heart disorder was the result of military service. She noted that there was no evidence or diagnosis of any heart disorder in the STRs or within one year of discharge. In addition, while the examiner noted the Veteran's complaints of in-service chest pain, cardiovascular evaluations revealed no evidence of a heart disorder. Also, she noted that the assessment of atypical chest pain in-service was non-cardiac in origin. Furthermore, the examiner noted that there was no evidence of heart murmurs or heart condition-related complaints in various physical examinations during service. The examiner then gave a negative opinion that the heart disorder was caused or aggravated by the service-connected PTSD. She noted that medical literature did not support any etiological link or aggravation of the Veteran's heart disorder. She then cited general information from the American Heart Association on subaortic stenosis. An addendum VA medical opinion was issued in February 2021. The examiner gave a negative opinion that the heart disorder was caused or aggravated by the service-connected PTSD. She noted that there was no medical literature that supported an etiological link between PTSD and valvular heart disease. She then cited the three primary etiologies of valvular heart disease: congenital abnormal value, often with superimposed calcification; calcific disease of a trileaflet valve; and rheumatic valve disease. Furthermore, she noted that rheumatic valve disease is the most common cause of the Veteran's heart disorder. Since there is evidence demonstrating that the Veteran's heart condition could have preexisted service, this matter must be remanded for an addendum VA opinion that addresses whether the Veteran's heart condition was not aggravated beyond its natural progression as a result of his military service. 2. Entitlement to service connection for a respiratory disorder, including asthma, due to environmental hazard exposure in Southwest Asia. The Veteran contends that he currently has asthma that is due to military service. Specifically, he contends that he was exposed to desert dust while serving in the Southwest Asis theatre of operations. A review of the STRs reveals complaints and treatment for upper respiratory infections and bronchitis. In addition, a review of the post-service VA and private treatment records note complaints and treatment for asthma. A February 2011 private treatment record notes that the Veteran was diagnosed with asthma and acute asthmatic bronchitis. Several VA treatments in January 2013, March 2013, and April 2014 noted the Veteran's use of an inhaler several times a year and recent hospitalization for acute bronchitis. The Veteran underwent a VA examination in April 2021. He reported being diagnosed with asthma, but was unaware as to when or how he was diagnosed. The examiner noted the use of intermittent inhalational bronchodilator therapy. However, he found no evidence of a respiratory condition, despite noting "Asthma" on the examination report. The examiner also found that the requested etiology opinion was moot, as he could not locate any medical records verifying a chronic diagnosed respiratory condition. A May 2021 addendum VA opinion was issued, in which the examiner explained at the asthma notation in the April 2021 examination report was a typographical error and that there was no diagnosis of asthma found in the medical records. A July 2021 addendum VA opinion was issued, in which the examiner stated that there was no medical evidence demonstrating an asthma diagnosis or any respiratory condition, thereby rendering the requested etiology opinion moot. He went on to state that even if the Veteran had a respiratory condition, including asthma, it would not be related to any of his service-connected disabilities. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and subsequent addendum opinions are inadequate for adjudicative purposes. The examiner failed to address all relevant evidence of record in forming an opinion. As stated above, the evidence of record demonstrates that the Veteran has been treated for asthma and acute asthmatic bronchitis throughout the appeal period. The examiner was directed to address this evidence in identifying any diagnosable respiratory condition during the appeal period, even if the condition had resolved. He failed to do so. In addition, the examiner failed to render a rationale for his opinion that the claimed asthma would not have been the result of his service-connected disabilities. As a result of the inadequacies of the VA examination and addendum opinions, the Board must remand this matter for an addendum VA opinion that addresses all the evidence of record. 3. Entitlement to TDIU prior to August 14, 2019 (excluding any periods of total disability based on hospital treatment under 38 C.F.R. § 4.29). The Veteran contends that he was unable to work due to his service-connected disabilities. The TDIU claim is inextricable intertwined with the claims being remanded for additional development. As such, the Board finds that the TDIU claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain an addendum VA medical opinion from the examiner who issued the February 2021 addendum VA opinion regarding the Veteran's heart disorder. The examiner should review the Veteran's claims file and make a notation that the claims file has been reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. If the February 2021 VA examiner is unavailable, then forward the claims file to a medical professional with appropriate expertise. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is there clear and unmistakable evidence (undebatable/near certain) that a heart condition pre-existed active service? (b.) If so, is there also clear and unmistakable evidence that the preexisting disability was NOT aggravated beyond its natural progression by the subsequent active service? The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum opinion from the VA examiner who rendered the July 2021 VA medical opinion regarding the nature and etiology of the Veteran's respiratory disorder. The electronic claims file must be made available to the examiner. The examiner should note in the examination report that the claims file has been reviewed. If the July 2021 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Identify all diagnosable respiratory conditions, including asthma, present during the period on appeal (i.e., starting when the claim was filed in April 2012), even if such condition has since resolved. In doing so, the examiner must address the Veteran's private and VA treatment records noting a diagnosis of asthma. (b.) The examiner should clarify whether the Veteran's respiratory symptoms are a manifestation of his heart disorder, his service-connected sleep apnea or other service-connected disabilities, or a separate disability. (c.) For each condition identified, provide an opinion on as to whether it is at least as likely as note (a balance of positive and negative evidence) that the condition had its onset in service or is otherwise related to service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment, and that his reports must be taken into account. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. (Continued on the next page) A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.